Preston and Baker and Anor - [2014] FCCA 1329

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRESTON & BAKER & ANOR

[2014] FCCA 1329

Catchwords:
FAMILY LAW – Parenting – two day hearing 2012 resulted in change of primary care arrangements and interim orders – 2012 findings included that children at risk of psychological harm if they remained in the mother’s care – dispute as to which parent should have sole parental responsibility – dispute as to whether the children should live in an equal shared care arrangement or live primarily with their father – case reopened contravention application.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA, 65N,

65P, 70NAC, 70NAE, 70NAF(1)

Preston & Baker and Anor [2012] FMCAfam 308
Re W & W (2001) 28 Fam LR 45
Suell and Suell (Re-opening) [2009] FamCA 55
MRR and GR [2010] HCA 4

Applicant:

MR PRESTON

First Respondent:

MS BAKER

Second Respondent:

MR QUIGLEY

File Number:

DNC 169 of 2011

Judgment of:

Judge Harland

Hearing dates:

26, 27 and 28 March, 2 and 4 April and 30

May 2014

Date of Last Submission:

30 May 2014

Delivered at:

Darwin

Delivered on:

24 June 2014

REPRESENTATION

Counsel for the Applicant:

Ms Farmer

Solicitors for the Applicant:

Withnalls Lawyers

The First Respondent:

In Person

The Second Respondent:

No Appearance

ORDERS

That all previous parenting orders are discharged.
That the Father have sole parental responsibility of the children X born (omitted) 2008 (“X”) and Y born (omitted) 2010 (“Y”).
That the children spend time with the Mother during school terms as follows:
a) From after school Friday to before school the following Tuesday in each alternate week;
b) That X and Y be returned to the Father at (omitted) Primary School front office at 8.00am each alternate Tuesday upon changeover if the Mother is proposing for X not to attend school or Y not to attend day care for any reason whatsoever including illness.
That the children spend time with the Mother and Father during school holidays commencing in 2014 and in each year thereafter equally as follows:
a)   In odd numbered years with the Father for the whole of the first term holidays and with the Mother for the whole of the third term holidays;
b)     In even numbered years with the Mother for the whole of the first term holidays and with the Father for the whole of the third term holidays;
c)     In even numbered years with the Mother for the first half of the second and fourth term school holidays and with the Father for the second half of the second and fourth term school holidays;
d)     In odd numbered years with the Father for the first half of the second and fourth term school holidays and with the Mother for the second half of the second and fourth term school holidays;
e)     In odd numbered years with the Father for the whole of Easter, calculated from after school Thursday to before school the following Tuesday and in the event Easter is not included in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 1329
Decision Date: 24 June 2014

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Harland in relation to the children X and Y. The proceedings involved a contravention application brought by the Father against the Mother.

The court was required to determine the future parenting arrangements for the children, including the allocation of parental responsibility and the specific time the children would spend with each parent. Additionally, the court had to consider the contravention application brought by the Father against the Mother.

Judge Harland ordered that all previous parenting orders be discharged. The Father was granted sole parental responsibility for the children. The court then set out detailed arrangements for the children's time with the Mother, including specific days during school terms and a complex schedule for school holidays, which was to continue irrespective of days of significance unless otherwise agreed in writing. The orders also included provisions for Mother's Day and Father's Day. Crucially, the court issued several injunctions, including preventing the Mother from removing the children's clothing at changeovers, ensuring the children attend school or day care, and preventing the Mother from attending the children's school or day care. Provisions were also made for interstate and overseas travel, including notice periods and the exchange of passports. The Mother was found guilty of one contravention of previous orders and ordered to pay the Father's costs for the contravention application.

Orders

Orders of the court

That all previous parenting orders are discharged.

That the Father have sole parental responsibility of the children X born (omitted) 2008 (“X”) and Y born (omitted) 2010 (“Y”).

That the children spend time with the Mother during school terms as follows:

a) From after school Friday to before school the following Tuesday in each alternate week;

b) That X and Y be returned to the Father at (omitted) Primary School front office at 8.00am each alternate Tuesday upon changeover if the Mother is proposing for X not to attend school or Y not to attend day care for any reason whatsoever including illness.

That the children spend time with the Mother and Father during school holidays commencing in 2014 and in each year thereafter equally as follows:

a) In odd numbered years with the Father for the whole of the first term holidays and with the Mother for the whole of the third term holidays;

b) In even numbered years with the Mother for the whole of the first term holidays and with the Father for the whole of the third term holidays;

c) In even numbered years with the Mother for the first half of the second and fourth term school holidays and with the Father for the second half of the second and fourth term school holidays;

d) In odd numbered years with the Father for the first half of the second and fourth term school holidays and with the Mother for the second half of the second and fourth term school holidays;

e) In odd numbered years with the Father for the whole of Easter, calculated from after school Thursday to before school the following Tuesday and in the event Easter is not included in the first term school holidays pursuant to Order 4.a) herein; and

f) In even numbered years with the Mother for the whole of Easter, calculated from after school Thursday to before school the following Tuesday and in the even Easter is not included in the first term school holidays pursuant to Order 4.a) herein.

That the time spent pursuant to Orders 3 and 4 continue irrespective of any days of significance and there be no change to any time spent unless agreed in writing between the parties.

That in the event the children are not otherwise in the mother’s care on Mother’s Day, the mother shall have the care of the children from 10.00am on Mother’s Day until 8.00am the following morning.

That in the event the children are not otherwise in the father’s care on Father’s Day, the father shall have the care of the children from 10.00am on Father’s Day until 8.00am the following morning.

That all changeovers take place at the children’s school during school term and at the playground (omitted) during school holidays.

That there be a mandatory injunction preventing the Mother from removing the children’s clothing at changeover and exchanging the children in their underwear.

10.

That there be an injunction restraining the Mother from retaining the children in the event they are sick and a mandatory injunction ensuring the children attend school and/or day care on every week day and/or school day of any school term.

11.

That there be a mandatory injunction preventing the Mother from attending day care or school at any time during which the children are living with or spending time with the Father.

12.

That the children be permitted to travel interstate and/or overseas with either of the parties provided that the party with whom the children are to travel provides to the other party not less than 14 days notice and provides itineraries and contact addresses and telephone numbers for the children whilst they are overseas so that the children can communicate with the other party at all reasonable times.

13.

That the Father provide to the Mother the children’s passports not less than 7 days prior to travel any notified overseas travel and the Mother return the children’s passports to be held by the Father after the conclusion of travel immediately upon return.

14.

That the parents shall each keep the other parent advised of their respective telephone numbers, being a mobile telephone number and their respective residential addresses and each parent shall within 7 days of any change of either their telephone number or residential addresses, advise the other parent of that change.

Contravention Application

15.

The mother is found guilty of one contravention of the orders made on 18 July 2012.

16.

The mother is to pay the father’s costs of the contravention application of $1,661within 60 days of the date of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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